Topic 1 : appointment and dismissal of the prime minister

APPOINTMENT

The Prime Minister is appointed by the YDPA. The appointment of the Prime Minister
falls under the discretionary power of the YDPA as stated in Article 40(2)(a). However, if
there is a clear and absolute majority as a result of the General Election, the YDPA has no
choice but to appoint the party’s leader. Article 43(2)(a) laid down the guidelines for the
appointment of the PM which he has to be the member of the HOR and must in judgement of
the YDPA be “likely to command the confidence of the majority”.

For example in the case of Tun Haji Mustapha v Tun Datuk Haji Mohamed Adnan
Robert, YPN sabah & Datuk Pairin Kitingan, the plaintiff sued for declaration that the first
defendant revocation of plaintiff’s appointment as Chief Minister and the appointment of the
second defendant as the Chief Minister were ultra vires to the Sabah State Constitution. The
revocation and the appointment of the second defendant was held to be null and void. Tan
Chiaw Thong j stated that the Head of State cannot constitutionally appoint Chief Minister
without taking into account the number of elected seats secured by each and every political
party.

In the event of “hung parliament”, where no party commands an absolute majority, the
YDPA may exercise his discretion to appoint leader of the party which in his judgement most
likely to command the confidence of the HOR. In the case of PP V Mohd Amin Mohd Razali,
the High Court attributed wide discretion to the YDPA during period of the dissolution of the
Parliament because Article 40(1) which requires the monarch to act on advice is not applicable
if the advice is rendered by caretaker government.

DISMISSAL

The PM cannot be dismissed from his office by the monarch unless a vote of no
confidence has been passed against him in the HOR. However, the YDPA will be justified in
dismissing the PM as stated in Article 43(4) where if the PM ceases to secure the confidence
of the HOR fails to secure the YDPA’s assent to dissolve parliament and refusal to tender his
resignation.
 There must be sufficient loss of confidence examined through the circumstances of case
and the factors which may lead to the dismissal of PM. Where there are vote of no confidence,
the PM can be dismissed by two factors which are internal and externally.

Internal factors takes place when a vote of no confidence were being passed against the
PM at the Lower House. The vote must be done in formal way where it must be done inside
the parliament by the members of Dewan Rakyat. This can be seen in the case of Stephen
Kalong Ningkan v Tun Abang Haji Openg & Tawi Sli where 21 of the defect members went
to see the governor to declare they had lost confidence SKN. The court later held that the
VONC should be done formally in the Council Negeri. Moreover in the case of Adeqbenro v
Akintola, VONC was passed to the PM where 66 out of 124 members signed a letter of VONC.
This shows the PM has lost the confidence of majority

External factors happens when loss of confidence are demonstrated in other ways than
it is in the parliament. For example, loss of confidence is demonstrated through audience with
the YDPA. This can be seen in the case of Dato’ Seri Ir Hj Mohammad Nizar bin Jamaluddin
v Dato’ Seri Dr Zambry bin Abdul Kadir (Attorney General, Intervener) where 31 members,
which represent the majority of HOR, seek audience with the sultan that they had loss their
confidence in the former appellant as Chief Minister. Other than that, loss of confidence can
also be seen by defection by members of his party. For example in the case of Datuk Amir
kahar v Tun Mohd Said, YDPN Sabah & ors, where YDPN’s office received a petition signed
by 30 members of the Legislative Assembly declaring that they no longer had any confidence
in nor would give any support to Datuk Pairin and requested to procure the resignation of Datuk
Pairin as CM.
 Other than vote of no confidence, the YDPA is justified to dismiss the PM as stated in
Article 43(4) where if the PM ceases to secure the confidence of the HOR fails to secure the
YDPA’s assent to dissolve parliament and refusal to tender his resignation.

The PM can also be removed from office by requesting to the YDPA to dissolve the
parliament. However the dissolution of the parliament is under the discretionary power of the
YDPA stated in article 40(2)(b). the YDPA can exercise this power when a PM refused to
tender resignation and request for dissolution of the parliament, yet, the monarch refused his
request as he have been the Chief Minister only for nine months and the cost for a new election
is high. This can be seen in this case of Dato’ Seri Ir Hj Mohammad Nizar bin Jamaluddin v
Dato’ Seri Dr Zambry bin Abdul Kadir (Attorney General, Intervener).

If such a request is made, the Yang di-Pertuan Agong can decline, and can instead
exercise his judgment under Article 43 (2) (a) to invite another person who in his judgment can
form a administration which will command majority support in the Dewan Rakyat.

Only if the Yang di-Pertuan Agong is satisfied that no person can form a stable
administration that would last for a reasonable period of time without being defeated on a no
confidence motion should Parliament be dissolved and call for fresh election.

PM can also be removed from office by his own resignation from office. According to
Article 43(4) unless it is at his request the YDPA dissolves parliament, the pm shall tender the
resignation of the cabinet. For example in the case of Datuk Amir kahar v Tun Mohd Said,
YDPN Sabah & ors, after voted loss of confidence by the members of SLA, Datuk Pairin
Kitingan tender his own resignation after his request to dissolve the SLA was rejected by the
YDPN.